JERRY ROSENSTEIN AND DONALD SANDERS, PETITIONERS V. UNITED STATES
OF AMERICA
ANTONIO NIGO-MARTINEZ AND SALVADOR JARABA, PETITIONERS V. UNITED
STATES OF AMERICA
JERALD WILSON, PETITIONER V. UNITED STATES OF AMERICA
No. 87-1872, 87-6673, 87-6808
In the Supreme Court of the United States
October Term, 1987
On Petitions for a Writ of Certiorari to the United States Court of
Appeals for the Seventh Circuit
Brief for the United States in Opposition
TABLE OF CONTENTS
Question Presented
Opinion below
Jurisdiction
Statement
Argument
Conclusion
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1a-20a) is reported
at 841 F.2d 1300. /1/
JURISDICTION
The judgment of the court of appeals was entered on February 17,
1988. A petition for rehearing was denied on March 15, 1988. The
petition for a writ of certiorari in No. 87-1872 was filed on May 16,
1988. The petition for a writ of certiorari in No. 87-6673 was filed
on March 23, 1988. The petition for a write of certiorari in No.
87-6808 was filed on April 16, 1988. The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether the term of a special grand jury convened under 18 U.S.C.
3331 is extended where, before the grand jury's term expires, the
district court determines that the grand jury has not completed its
investigation but fails to enter a formal written order reflecting
that determination.
STATEMENT
On September 22, 1986, the Special December 1983 Grand Jury sitting
in the Northern District of Illinois returned a superseding indictment
charging petitoners Rosenstein and Sanders (No. 87-1872) and others
with various offenses, including conspiracy to steal, dismantle, and
transport automobiles and parts, in violation of 18 U.S.C. 1962 and
2314. Both petitoners pleaded guilty to two counts of the indictment
in December 1986, and each was sentenced to eight years' imprisonment,
to be followed by five years' probation. On November 17, 1986, the
same grand jury returned an indictment charging petitoner Wilson (No.
87-6808) with making false statements to the government, in violation
of 18 U.S.C. 1001, and with obstructing justice, in violation of 18
U.S.C. 1503. After a jury trial, he was convicted on all counts. On
July 22, 1986, the Special October 1984 Grand Jury sitting in the
Northern District of Illinois returned a two-count indictment charging
petitioners Jaraba and Nigo-Martinez (No. 87-6673) with conspiracy to
possess and distribute cocaine, in violation of 21 U.S.C. 846, and
possession of cocaine with intent to distribute it, in violation of 21
U.S.C. 841(a). Following a jury trial, each was convicted on both
counts and was sentenced to concurrent terms of five years' probation
on each count.
1. The Special December 1983 Grand Jury was convened on December 2,
1983, pursuant to 18 U.S.C. 3331. Prior to the expiration of the
initial 18-month term, Chief Judge McGarr entered a written order,
dated May 25, 1985, that effectively extended the grand jury's term
for six months. Prior to the expiration of that extension, Chief
Judge McGarr entered another written order, dated November 25, 1985,
that effectively extended the grand jury's term for an additional six
months. /2/ Chief Judge McGarr did not enter a third formal written
order extending the grand jury's term prior to the expiration of the
second extension on June 2, 1986. The grand jury, however, continued
meet and to return indictments after that date, including the
indictments on which petitoners Rosenstein, Sanders, and Wilson were
convicted. On several occasions both prior to and after June 2, Chief
Judge McGarr instructed the grand jury to resume deliberations.
The Special October 1984 Grand Jury was convened pursuant to 18
U.S.C. 3331 in October 1984. In March 1986, prior to the expiration
of its initial 18-month term in April, the grand jury voted
unanimously to continue its work. No formal written order extending
the grand jury's term was entered, although the grand jury continued
to appear weekly before Chief Judge McGarr (and later Judge Grady) for
ten months after the expiration of the 18-month term. It returned the
indictment against petitoners Jaraba and Nigo-Martinez in July 1986.
Following the discovery that there were no written orders extending
the Special December 1983 Grand Jury and the Special October 1984
Grand Jury, the United States Attorney's Office presented corrective
nunc pro tunc orders to Chief Judge McGarr. /3/ With respect to the
Special December 1983 Grand Jury, Chief Judge McGarr entered a nunc
pro tunc order on February 21, 1987, stating that he had determined
prior to May 25, 1986, that the grand jury had not completed its work
(Pet. App. 7a n.10). With respect to the Special October 1984 Grand
Jury, Chief Judge McGarr entered a nunc pro tunc order on March 3,
1987, stating that he had determined in March 1986 that the grand jury
had not completed its work (id. at 9a n.11).
2. In April 1987, petitioners Rosenstein and Sanders moved to set
aside their convictions, to vacate their sentences, and to dismiss the
indictment against them. They argued that the Special December 1983
Grand Jury was without authority to indict when it returned the
indictment on September 22, 1986, because there was no written order
extending its term beyond the expiration of the second extension on
June 2, 1986. On March 26, 1987, petitoner Wilson moved to dismiss
the indictment and to vacate his judgment of conviction on the same
ground, because he had been indicted by the Special December 1983
Grand Jury on November 17, 1986. The district court granted both
motions, and the government appealed.
In April 1987, petitoners Jaraba and Nigo-Martinez moved to vacate
their convictions and to preclude further prosecution. They argued
that the Special October 1984 Grand Jury was without authority to
indict when it returned the indictment against them on July 22, 1986,
because there was no written order extending the grand jury's term
beyond the expiration of the initial 18-month period in April 1986.
The district court denied the motion, and petitoners appealed.
3. The court of appeals held the indictments valid (Pet. App.
1a-20a). The court ruled that the terms of both special grand juries
had been properly extended under 18 U.S.C. 3331(a) at the times the
indictments against petitoners were returned. The court first
concluded that Section 3331(a) extends the special grand jury's term
whenever the district court makes a determination prior to the
expiration of the grand jury's term that the grand jury has not
completed its business. Thus, the statute "requires only this
judicial determination -- not the ministerial act of memorializing it
by formal order -- to effect the valid extension of a special grand
jury" (Pet. App. 13a).
The court reasoned that this view is in accord with the statutory
language, /4/ if read not with "'slavish literalism'" but with an eye
toward discerning the statute's purpose based on the "statute as a
whole" and its history (Pet. App. 13a (citation omitted)). The court
explained (id. at 13a-15a) that Section 3331 was deliberately written
to give the special grand juries, which were created to investigate
complex organized crime offenses, an unusually long tenture (as much
as 36 months, rather than the ordinary 18-24 months under Fed. R.
Crim. P. 6(g)) and an unusual degree of independence from the
supervising court: the statue thus grants such a special grand jury
protection against involuntary termination by the court, allowing the
grand jury to take an appeal to the chief judge of the circuit if the
district court orders it discharged or fails to extend its term (18
U.S.C. 3331(b)). Since such a grand jury is protected against
intentional unwarranted disruptions by the district court, the court
pointed out, the statute could not sensibly be construed to deprive
the grand jury (and its indictments) of protection against a mere
inadvertent omission by the district court, such as a failure to enter
a written order memorializing the court's determination that an
extention of the grand jury's term is warranted. Hence, the court
concluded (Pet. App. 16a-17a), although it would have been preferable
for the district court to enter an order at the time of the
extensions, the mere absence of a contemporaneous written order was
not fatal if there was other "reliable and unequivocal" evidence
establishing that the district court actually made the determination
that the special grand jury had not finished its business.
The court of appeals found (Pet. App. 18a-19a) the required proof
that the district court here had made the determinations that were
required to extend each special grand jury's term. Based on the order
of February 21, 1987, the court concluded (id. at 18a) that the
district judge had made a finding prior to May 25, 1986, that the
Special December 1983 Grand Jury had not completed its investigation.
The court of appeals similarly concluded (id. at 19a) that the order
of March 3, 1987, established that the district judge had made a
finding in March 1986 that the Special October 1984 Grand Jury had not
finished its business. Accordingly, the court of appeals held (id. at
20a) that "the Special December 1983 Grand Jury was validly extended
until December 2, 1986 and the Special October 1984 Grand Jury was
validly extended until 24 months from the date of its impanelment,"
and the indictments against petitioners were therefore valid. /5/
ARGUMENT
These cases present a question of first impression involving the
construction of 18 U.S.C. 3331(a). The decision of the court of
appeals is correct, and it does not conflict with any decision of this
Court or any other court of appeals. In addition, the narrow issue
presented here is not likely to arise often. Further review by this
Court is therefore unwarranted.
1. Petitioners renew their contention (87-1872 Pet. 7-11; 87-6673
Pet. 3-4; 87-6808 Pet. 3-5) that the district court's failure to
enter an order extending the term of the special grand juries convened
under 18 U.S.C. 3331(a) deprived the special grand juries of the power
to return valid indictments. That contention is incorrect.
To begin with, the court of appeals adopted the most reasonable
construction of Section 3331(a) -- that what operates to extend the
term of a grand jury is the district court's determination that the
grand jury's work is not completed, rather than the ministerial act of
formally memorializing that determination. Although Section 3331(a)
plainly envisions that entry of a judicial order will ordinarily be
the means by which the terms of a special grand jury is extended, the
statute does not by its terms strictly require such an order for a
valid extension, let alone an order contemporaneous with the judicial
determination that the grand jury has not completed its business. As
the court of appeals explained, "in the absence of a statutory
provision requiring the entry of a written order," the statute is most
sensibly read to make the judicial determination itself, as proved by
reliable evidence, "the operative act of the court" (Pet. App. 17a).
The judicial determination fulfills the purpose of the statute --
to ensure that a special grand jury is not allowed to continue past a
specified time without an independent check on its progress toward
completion of its work. It is the judicial determination that
provides that check. The act of memorializing the determination in an
order is purely ministerial. Although such an order is the best
evidence that the determination was made, its significance is only
evidentiary. But where, as here, there is other "reliable and
unequivocal" evidence (Pet. App. 17a) that the determination was in
fact made (based on the court's later findings and the fact that the
court repeatedly had the grand juries resume deliberations both before
and after the date on extensions were needed), the statutory
requirement is satisfied.
Reading Section 3331(a) to render a special grand jury's actions
void because of the district court's inadvertent failure to perform a
ministerial task would be contrary to the overall statutory design.
As the court of appeals observed (Pet. App. 14a-15a), Section 3331,
which was enacted as part of the Organized Crime Control Act of 1970,
Pub. L. No. 91-452, 84 Stat. 922, gives enhanced powers to the special
grand juries established to investigate organized crime: it permits
them to serve for longer periods and gives them a greater degree of
independence from their supervising courts than regular grand juries
(see Fed. R. Crim. P. 6). Thus, in addition to allowing the special
grand jury's term to be extended up to 36 months, Section 3331(a)
provides that a special grand jury may not be discharged before it has
served its initial 18 months unless the grand jury itself determines
that it has finished its business and the court enters an order for
its discharge. At the same time, Section 3331(b) protects the grand
jury against the district judge's erroneous actions by providing a
mechanism for the grand jury to appeal to the chief judge of the
curcuit if a district judge discharges the grand jury early or fails
to extend its term when its business remains unfinished.
It would be inconsistent with the autonomy established by those
provisions to invalidate the work of such a grand jury because of the
district court's failure to perform a ministerial act recording an
otherwise valid determination that the grand jury should continue,
expecially when the grand jury has repeatedly been directed to resume
deliberations. /6/ As the court of appeals reasoned (Pet. App. 14a),
it makes no sense to read Section 3331(a) as subjecting the grand jury
to disruption because of mere oversight by the district court when the
grand jury is protected against even intentional disruptions by the
court. Indeed, while an intentional failure to extend the grand
jury's term would presumably come to the attention of the grand jury
and therefore be subject to correction through an appeal to the chief
judge of the circuit, a district court's failure to enter an order
would presumably not be noticed by the grand jury, especially if it
continues to report to the court and the court continues to direct it
to resume deliberations. In that circumstance, the opportunity for
corrective the grand jury's actions.
For those reasons, the court of appeals reasonably construed
Section 3331(a) to mean that a special grand jury's term is extended
whenever, as proved by a written order or by "other reliable an
inequivocal evidence" (Pet. App. 17a), the supervising court makes the
required determination that the grand jury has not comPleted its
business. Because it was clearly established that that determination
was made in these cases, the terms of the special grand juries were
properly extended. There was therefore no error in the grand jury's
return of the indictments.
In any event, even if Section 3331(a) were construed to require a
written order for a proper extension of the grand jury, the judgment
of the court of appeals would nonetheless be correct. Any such error
was harmless and should be disregarded under Fed. R. Crim. P. 52(a).
This is not a case in which a grand jury returns an indictment after
an absolute statutory limit on its tenure has been exceeded. Here,
the grand jury was acting well within the 36 months allowed by 18
U.S.C. 3331. Moreover, there was "reliable and unequivocal" proof
that the determination required by the statute was in fact made by the
district court. The only deficiency was the absence of a formal order
memorializing that determination. /7/ The failure to enter such an
order did "not affect substantial rights" of petitioners and is
therefore no ground for dismissing the indictments and overturning
petitioner's convictions (Fed. R. Crim. P. 52(a)). See Rule 52(a)
advisory committee note (noting that the rule is "a restatement of
existing law," citing 18 U.S.C. (1940 ed.) 556, which said that "(n)o
indictment * * * shall be deemed insufficient, nor shall the trial,
judgment, or other proceeding thereon be affected by reason of any
defect or imperfection in matter of form only, which shall not tend to
the prejudice of the defendant").
2. Petitioners also contend (87-1872 Pet. 12; 87-6673 Pet. 4) that
the decision of the court of appeals conflicts with the decisions of
the Second Circuit in United States v. Fein, 504 F.2d 1170 (1974), and
United States v. Macklin, 523 F.2d 193 (1975), and with the decision
of the Ninth Circuit in United States v. Armored Transport, Inc. 629
F.2d 1313 (1980), cert. denied, 450 U.S. 965 (1981). That contention
is wholly without merit. The cited decisions held only that a regular
grand jury is without power to return a valid indictment after the
expiration of the absolute, non-extendable time it is permitted to
sit; the lapse of such time, of course, is an incurable defect. /8/
Those decisions are irrelevant to whether, as the court of appeals
held, the term of a special grand jury is properly extended order.
And none of these decisions involved an error that was harmless
because it could be fully corrected by a purely ministerial act. /9/
CONCLUSION
The petitions for a writ of certiorari should be denied.
Respectfully submitted.
CHARLES FRIED
Solicitor General EDWARD S. G. DENNIS, JR. Acting Assistant
Attorney General
JOSEPH C. WYDERKO
Attorney
JUNE 1988
/1/ "Pet. App." refers to the appendix to the petition in No.
87-1872.
/2/ The orders stated that the grand jury term was extended "until
further notice," but the statute provides for only six-month
extensions (18 U.S.C. 3331(a)).
/3/ As the court of appeals noted (Pet. App. 3a, 4a n.2), a similar
problem exists with the Special January 1985 Grand Jury convened in
the Northern District of Illinois.
/4/ Section 3331(a) states in pertinent part:
The grand jury shall serve for a term of eighteen months unless
an order for its discharge is entered earlier by the court upon
a determination of the grand jury by majority vote that its
business has been completed. If, at the end of such term or any
extension thereof, the district court determines the business of
the grand jury has not been completed, the court may enter an
order extending such term for an additional period of six
months. No special grand jury term so extended shall exceed
thirty-six months, except as provided in (Section 3333(e)).
/5/ The court noted (Pet. App. 5a n.3, 19a) that it was unclear
from the record on which date in October 1984 the Special October 1984
Grand Jury was empaneled. Because one defendant who is not a
petitioner here was orginally indicted on October 14, 1986, which
might have been beyond the first extension, and was the subject of two
superseding indictments that were returned in January 1987, the court
remanded the case for a determination of the empanelment date and
whether a judicial finding had been made prior to the expiration of
the first extension that the grand jury had not finished its business.
/6/ As the court of appeals observed (Pet. App. 14a (emphasis in
original)), the language of Section 3331(b) also suggests that entry
of written order of extension should not be determinative under
Section 3331(a). Subsection (b) conditions the grand jury's right to
appeal to the chief judge on "the entry of an order in the case of the
discharge of a grand jury * * *, (but) it mentions no such requirement
in the case of an extension." The provision thus allows an appeal from
a "fail(ure) to extend the term" (18 U.S.C. 3331(b)), not from a
"failure to enter an order extending the term"
/7/ This case does not involve an error committed before the grand
jury or any question about the effect of such an error on its decision
to return an indictment or on a subsequent conviction. Cf. United
States v. Mechanik, 475 U.S. 66 (1986).
/8/ At the time of those decisions, regular grand juries were
limited by Rule, 6, Fed. R. Crim. P., to 18-month terms, which could
not be extended. Rule 6(g) was amended in 1983 to allow extensions of
a regular grand jury's term. The Rule currently provides:
A grand jury shall serve until discharged by the court, but no
grand jury may serve more than 18 months unless the court
extends the service of the grand jury for a period of six months
of less upon a determination that such extension is in the
public interest. * * *
See Fed. R. Crim. P. 6 advisory committee note (1983 Amendment).
/9/ In the Armored Transport case, the court held that the
invalidity of the indictment did not require reversal of the
convictions because the prosecution could have proceeded by
information.